2005 PLP 973 (MLD)

Date of hearing: 15th June, 2004. Mst. Wazir Mai and others had filed a suit for recovery of possession on the basis of ownership with regard to a plot measuring 3 Marlas situate in Mohallah Darkhana near Imam Bargah, Uch Sharif, against Mukhtar Ahmad and Mst. Kaneez Safia. The suit was contested by filing written statement. The parties had adduced their evidence and the suit was decided by the learned Civil Judge. Ahmadpur East through his judgment and decree dated 29‑4‑1992, by which the suit of the plaintiffs was decreed. Aggrieved from the judgment and decree, Mukhtar Ahmad and Mst. Kaneez Safia, who were defendants in the suit filed an appeal before the learned Additional District Judge, Ahmadpur East, which was dismissed on 1‑3‑2000.

2. During the pendency of the suit, an order of status quo was issued on 25‑3‑1987 by the learned trial Court and the defendants petitioners were directed not to dispose of the property in dispute till the disposal of the suit but during the pendency of the suit it was alleged that petitioner No.1 had transferred the house in dispute, through registered sale‑deed, dated 22‑12‑1987. So, the proceedings for violation of injunctive order were initiated against petitioner No.1 in which he was convicted by the learned trial Court. The appeal was filed by Mukhtar Ahmad, convict in the Court of learned Additional District Judge, Ahmadpur East, which was also disposed of on 9‑3‑2000. Against both these orders passed by the learned Appellate Court, instant civil revision has been filed.

3. Grievance as agitated by the learned counsel for the petitioners is that learned Additional District Judge, without adverting to the evidence brought on the record by the parties and without considering and appreciating the evidence, had decided the appeals. According to the learned counsel, the provisions of Order XLI, rule 31, C.P.C. have been violated.

4. Learned counsel appearing on behalf of respondents has supported the judgment of the learned Appellate Court by stating that the learned Judge had taken note of the arguments of the learned counsel in the earlier paragraphs of his judgment and this procedure adopted by the learned Additional District Judge was valid one. It has further been argued by the learned counsel that two different orders were passed by the learned Additional District Judge on 9‑3‑2000, therefore, this single revision petition was not competent.

5. I have considered the arguments of both the learned counsel and have perused the record with their assistance.

6. After narrating the facts of the case and arguments of the learned counsel for the parties, discussion was commenced from Para No. 12 of the impugned judgment by the learned Additional District Judge. In that Para not a single witness was named and his evidence was considered as to what the witness has stated and whether his deposition was liable to be accepted or rejected. It is settled law that the learned Appellate Court being a Court of final finding of facts has to appreciate the evidence by discussing it in his grounds and without which, compliance of Order XLI, rule 31 of the C.P.C. would not be considered to have been made. As the learned Additional District Judge has not adopted this procedure, therefore, the judgment cannot be sustained in the eye of law.

7. As regards filing of another civil revision, the matter has arisen from a suit and decided by the learned Additional District Judge on the same date, although through two separate orders, yet it being an irregularity can be cured at this stage. As pre‑admission notice was issued to the learned counsel for the respondents and this being a minor technicality, I do not consider it fit at this stage to deprive the petitioner from being granted the relief. The impugned order passed under Order XXXIX, rule 2(3) of the C.P.C. has also been found passed with the same treatment as that has been given to the earlier order, noted above. Therefore, both the orders are set aside. The learned Additional District Judge, Ahmadpur East is directed to consider it as a matter pending before him and to decide both these appeals afresh after keeping in view requirement of Order XLI, rule 31, of the C.P.C. The parties to appear before the learned Additional District Judge, Ahmadpur East on 10‑7‑2004. As the case is old one, the learned Additional District Judge is directed to dispose of the case as early as possible, preferably within a period of four months from the date fixed for appearance of the parties before the aforesaid learned Court i.e. 10‑7‑2004. The civil revision stand accepted in the above terms. H.B.T./M‑995/L Case remanded.